Rachel Mitchell's analysis

Rachel Mitchell, the outside prosecutor Senate Republicans hired to lead the questioning in last week’s hearing about the sexual assault allegations against Judge Brett M. Kavanaugh, outlined in a memo Sunday to GOP senators why she would not bring criminal charges against the Supreme Court nominee. In the five-page memo, Mitchell explains what she sees as weaknesses and inconsistencies in what Christine Blasey Ford has said while describing an alleged assault by Kavanaugh at a home in suburban Maryland when they were teenagers in the early 1980s.

Please permit me this opportunity to present my independent assessment of Dr. Christine BlaseyFordas allegations against Judge Brett Kavanaugh. Before I do this, I want to emphasize twoimportant points:1. This memorandum contains my own independent assessment of Dr. Fordas allegations,based upon my independent review of the evidence and my nearly 25 years of experienceas a career prosecutor of sex-related and other crimes in Arizona. This memorandum doesnot necessarily reflect the views of the Chairman, any committee member, or any othersenator. No senator reviewed or approved this memorandum before its release, and I wasnot pressured in any way to write this memorandum or to write any words in thismemorandum with which I do not fully agree. The words written in this memorandum aremine, and I fully stand by all of them. While I am a registered Republican, I am not apolitical or partisan person.2. A Senate confirmation hearing is not a trial, especially not a prosecution. The Chairmanmade the following statement on September 25, 2018, after he hired me:As I have said, Iam committed to providing a forum to both Dr. Ford and Judge Kavanaughon Thursday that is safe, comfortable and dignified. The majority members have followedthe bipartisan recommendation to hire as staff counsel for the committee an experiencedcareer sex-crimes prosecutor to question the witnesses at Thursdayas hearing. The goal isto de-politicize the process and get to the truth, instead of grandstanding and givingsenators an opportunity to launch their presidential campaigns. Iam very appreciative thatRachel Mitchell has stepped forward to serve in this important and serious role. Ms.Mitchell has been recognized in the legal community for her experience and objectivity.Iave worked to give Dr. Ford an opportunity to share serious allegations with committeemembers in any format shead like after learning of the allegations. I promised Dr. Fordthat I would do everything in my power to avoid a repeat of the acircusa atmosphere in thehearing room that we saw the week of September 4. Iave taken this additional step to havequestions asked by expert staff counsel to establish the most fair and respectful treatmentof the witnesses possible.That is how I approached my job. There is no clear standard of proof for allegations madeduring the Senateas confirmation process. But the world in which I work is the legalworld, not the political world. Thus, I can only provide my assessment of Dr. Fordasallegations in that legal context.

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In the legal context, here is my bottom line: A ahe said, she saida case is incredibly difficultto prove. But this case is even weaker than that. Dr. Ford identified other witnesses to theevent, and those witnesses either refuted her allegations or failed to corroborate them. Forthe reasons discussed below, I do not think that a reasonable prosecutor would bring thiscase based on the evidence before the Committee. Nor do I believe that this evidence issufficient to satisfy the preponderance-of-the-evidence standard.Dr. Ford has not offered a consistent account of when the alleged assault happened.aC/ In a July 6 text to the Washington Post, she said it happened in the amid 1980s.aaC/ In her July 30 letter to Senator Feinstein, she said it happened in the aearly 80s.aaC/ Her August 7 statement to the polygrapher said that it happened one ahigh schoolsummer in early 80as,a but she crossed out the word aearlya for reasons she did notexplain.aC/ A September 16 Washington Post article reported that Dr. Ford said it happened in theasummer of 1982.aaC/ Similarly, the September 16 article reported that notes from an individual therapy sessionin 2013 show her describing the assault as occurring in her alate teens.a But she told thePost and the Committee that she was 15 when the assault allegedly occurred. She has notturned over her therapy records for the Committee to review.aC/ While it is common for victims to be uncertain about dates, Dr. Ford failed to explainhow she was suddenly able to narrow the timeframe to a particular season and particularyear.Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.aC/ No name was given in her 2012 marriage therapy notes.aC/ No name was given in her 2013 individual therapy notes.aC/ Dr. Fordas husband claims to recall that she identified Judge Kavanaugh by name in2012. At that point, Judge Kavanaughas name was widely reported in the press as apotential Supreme Court nominee if Governor Romney won the presidential election.aC/ In any event, it took Dr. Ford over thirty years to name her assailant. Delayed disclosureof abuse is common so this is not dispositive.When speaking with her husband, Dr. Ford changed her description of the incident to becomeless specific.aC/ Dr. Ford testified that she told her husband about a asexual assaulta before they weremarried.aC/ But she told the Washington Post that she informed her husband that she was the victimof aphysical abusea at the beginning of their marriage.aC/ She testified that, both times, she was referring to the same incident.Dr. Ford has no memory of key details of the night in questionadetails that could helpcorroborate her account.aC/ She does not remember who invited her to the party or how she heard about it.aC/ She does not remember how she got to the party.

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She does not remember in what house the assault allegedly took place or where thathouse was located with any specificity.Perhaps most importantly, she does not remember how she got from the party back to herhouse.o Her inability to remember this detail raises significant questions.o She told the Washington Post that the party took place near the Columbia CountryClub. The Club is more than 7 miles from her childhood home as the crow flies,and she testified that it was a roughly 20-minute drive from her childhood home.o She also agreed for the first time in her testimony that she was driven somewherethat night, either to the party or from the party or both.o Dr. Ford was able to describe hiding in the bathroom, locking the door, andsubsequently exiting the house. She also described wanting to make sure that shedid not look like she had been attacked.o But she has no memory of who drove her or when. Nor has anyone come forwardto identify him or herself as the driver.o Given that this all took place before cell phones, arranging a ride home would nothave been easy. Indeed, she stated that she ran out of the house after comingdownstairs and did not state that she made a phone call from the house before shedid, or that she called anyone else thereafter.She does, however, remember small, distinct details from the party unrelated to theassault. For example, she testified that she had exactly one beer at the party and wastaking no medication at the time of the alleged assault.

Dr. Fordas account of the alleged assault has not been corroborated by anyone she identified ashaving attendedaincluding her lifelong friend.aC/ Dr. Ford has named three people other than Judge Kavanaugh who attended the partyaMark Judge, Patrick aPJa Smyth, and her lifelong friend Leland Keyser (nA(c)e Ingham).Dr. Ford testified to the Committee that another boy attended the party, but that she couldnot remember his name. No others have come forward.aC/ All three named eyewitnesses have submitted statements to the Committee denying anymemory of the party whatsoever. Most relevantly, in her first statement to the Committee,Ms. Keyser stated through counsel that, a[s]imply put, Ms. Keyser does not know Mr.Kavanaugh and she has no recollection of ever being at a party or gathering where he waspresent, with, or without, Dr. Ford.a In a subsequent statement to the Committee throughcounsel, Ms. Keyser said that athe simple and unchangeable truth is that she is unable tocorroborate [Dr. Fordas allegations] because she has no recollection of the incident inquestion.ao Moreover, Dr. Ford testified that her friend Leland, apparently the only other girlat the party, did not follow up with Dr. Ford after the party to ask why she hadsuddenly disappeared.Dr. Ford has not offered a consistent account of the alleged assault.aC/ According to her letter to Senator Feinstein, Dr. Ford heard Judge Kavanaugh and MarkJudge talking to other partygoers downstairs while she was hiding in the bathroom afterthe alleged assault. But according to her testimony, she could not hear them talking toanyone.3

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o In her letter, she stated, aI locked the door behind me. Both loudly stumbled downthe stairwell, at which point other persons at the house were talking with them.ao She testified that Judge Kavanaugh or Mark Judge turned up the music in thebedroom so that the people downstairs could not hear her scream. She testifiedthat, after the incident, she ran into the bathroom, locked the door, and heard themgoing downstairs. But she maintained that she could not hear their conversationwith others when they got downstairs. Instead, she testified that she aassum[ed]a aconversation took place.Her account of who was at the party has been inconsistent.o According to the Washington Postas account of her therapy notes, there were fourboys in the bedroom in which she was assaulted.o She told the Washington Post that the notes were erroneous because there werefour boys at the party, but only two in the bedroom.o In her letter to Senator Feinstein, she said ame and 4 othersa were present at theparty.o In her testimony, she said there were four boys in addition to Leland Keyser andherself. She could not remember the name of the fourth boy, and no one has comeforward.o Dr. Ford listed Patrick aPJa Smyth as a abystandera in her statement to thepolygrapher and in her July 6 text to the Washington Post, although she testifiedthat it was inaccurate to call him a bystander. She did not list Leland Keyser eventhough they are good friends. Leland Keyseras presence should have been morememorable than PJ Smythas.

Dr. Ford has struggled to recall important recent events relating to her allegations, and hertestimony regarding recent events raises further questions about her memory.aC/ Dr. Ford struggled to remember her interactions with the Washington Post.o Dr. Ford could not remember if she showed a full or partial set of therapy notes tothe Washington Post reporter.iSS She does not remember whether she showed the Post reporter thetherapistas notes or her own summary of those notes. The Washington Postarticle said that aportionsa of her atherapistas notesa were aprovided byFord and reviewed bya the Post. But in her testimony, Dr. Ford could notrecall whether she summarized the notes for the reporter or showed her theactual records.o She does not remember if she actually had a copy of the notes when she texted theWashington Post WhatsApp account on July 6.iSS Dr. Ford said in her first WhatsApp message to the Post that she aha[d]therapy notes talking abouta the incident when she contacted the Postastipline. She testified that she had reviewed her therapy notes beforecontacting the Post to determine whether the mentioned anything aboutthe alleged incident, but could not remember if she had a copy of thosenotes, as she said in her WhatsApp message, or merely reviewed them inher therapistas office.aC/ Dr. Ford refused to provide any of her therapy notes to the Committee.

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Dr. Fordas explanation of why she disclosed her allegations the way she did raisesquestions.o She claimed originally that she wished for her story to remain confidential, but theperson operating the tipline at the Washington Post was the first person other thanher therapist or husband to whom she disclosed the identity of her allegedattacker. She testified that she had a asense of urgency to relay the information tothe Senate and the president.a She did not contact the Senate, however, becauseshe claims she adid not know how to do that.a She does not explain why she knewhow to contact her Congresswoman but not her Senator.Dr. Ford could not remember if she was being audio- or video-recorded when she tookthe polygraph. And she could not remember whether the polygraph occurred the sameday as her grandmotheras funeral or the day after her grandmotheras funeral.o It would also have been inappropriate to administer a polygraph to someone whowas grieving.

Dr. Fordas description of the psychological impact of the event raises questions.aC/ She maintains that she suffers from anxiety, claustrophobia, and post-traumatic stressdisorder (PTSD).o The date of the hearing was delayed because the Committee was informed thather symptoms prevent her from flying. But she agreed during her testimony thatshe flies afairly frequently for [her] hobbies and a| work.a She flies to the midAtlantic at least once a year to visit her family. She has flown to Hawaii, FrenchPolynesia, and Costa Rica. She also flew to Washington, D.C. for the hearing.o Note too that her attorneys refused a private hearing or interview. Dr. Fordtestified that she was not acleara on whether investigators were willing to travel toCalifornia to interview her. It therefore is not clear that her attorneys evercommunicated Chairman Grassleyas offer to send investigators to meet her inCalifornia or wherever she wanted to meet to conduct the interview.aC/ She alleges that she struggled academically in college, but she has never made anysimilar claim about her last two years of high school.aC/ It is significant that she used the word acontributeda when she described thepsychological impact of the incident to the Washington Post. Use of the wordacontributeda rather than acauseda suggests that other life events may have contributed toher symptoms. And when questioned on that point, said that she could think of anothingas striking asa the alleged assault.The activities of congressional Democrats and Dr. Fordas attorneys likely affected Dr. Fordasaccount.aC/ See the included timeline for details.

aBeen advised to contact senators orNYT. Havenat heard back from WaPo.aBrown was the reporter who ultimatelyresponded to the WhatsApp entries.

Produced documentsHearing testimony

Hearing testimonyFord and Eshoo met for amore than anhour and halfa in a aconference room.aEshoo suggested that she write a letterdetailing her claims to Senator Feinstein.aEshoo said she hasnat met with theprofessor since that July afternoon,although her staff has been in contact withher since she came forward.a

Ford took a polygraph test administeredby a former FBI agent. Katz provided theresults to the Washington Post. Theyshowed that she awas being truthful whenshe said a statement summarizing herallegations was accurate.a

The article reported that a letter in thepossession of Senator Feinsteinapurportedly describe[d] an incident thatwas relayed to someone affiliated withStanford University, who authored theletter and sent it to Rep. Anna Eshoo, aDemocrat who represents the area.a

SJC has a follow-up BIcall with Kavanaugh onthe Ford letter. SenatorFeinstein does notparticipate.SJC speaks withKavanaugh about theallegations against him.SJC speaks with JudgeKavanaugh about theallegations against him.